Ahn v. NYU Langone Hosps.

• Decision Date: 03 October 2022
• Docket Number: 805048/2022,MOTION SEQ. No. 001
• Citation: 2022 NY Slip Op 33417 (U)
• Parties: ALBERT AHN, Plaintiff, v. NYU LANGONE HOSPITALS, HAITHAM SIAQ, M.D., MARIA NAGEL, R.N., VISHAL THANIK, M.D., CHRISTINA CHEN, R.N., MICHELLE DOSCHER, R.N., GRETA PIPER, M.D., STEVE HAN, M.D., BARRY CZEISLER, M.D., and MARK GILLESPIE, P.A., Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33417(U)

ALBERT AHN, Plaintiff, v. NYU LANGONE HOSPITALS, HAITHAM SIAQ, M.D., MARIA NAGEL, R.N., VISHAL THANIK, M.D., CHRISTINA CHEN, R.N., MICHELLE DOSCHER, R.N., GRETA PIPER, M.D., STEVE HAN, M.D., BARRY CZEISLER, M.D., and MARK GILLESPIE, P.A., Defendants.

No. 805048/2022, MOTION SEQ. No. 001

Supreme Court, New York County

October 3, 2022

Unpublished Opinion

MOTION DATE 08/10/2022

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

John J. Kelley Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 40, 41, 42, 43, 44 were read on this motion to/for EXTEND - TIME.

In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 306-b for leave to extend his time to serve a copy of the summons and complaint upon Clarissa Chen, R.N., incorrectly sued herein as Christina Chen, R.N. No party opposes the motion. The motion is granted, the plaintiff shall have until February 3, 2023 to serve Chen, and, on the court's own motion, the caption is amended to reflect Chen's correct first name.

The plaintiff commenced this action on February 9, 2022. He thus had 120 days from that date, or until June 9, 2022, to serve Chen (see CPLR 306-b).

Although CPLR 306-b provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant," it alternatively authorizes the court, "upon good cause shown or in the interest of justice," to "extend the time for service." "In deciding such a motion the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. ... In these circumstances, the court's options were limited to either dismissing the action outright, or extending the time for plaintiff to properly effect service"

(Henneberry v Borstein, 91 A.D.3d 493, 495 [1st Dept 2012]; see Sottile v Islandia Home for Adults, 278 A.D.2d 482, 484 [2d Dept 2000] ["The statute gives a court the option of extending the time to serve instead of dismissing the action"] [emphasis in original]). CPLR 306-b provides that a court may only dismiss a complaint for failure to effect timely service of process "upon motion," not on its own initiative (see Daniels v King Chicken & Stuff, Inc., 35 A.D.3d 345, 345 [2d Dept 2006]; see also Vanyo v Buffalo Police Benevolent Assn., 159 A.D.3d 1448, 1452 [4th Dept 2018]). Since Chen has not made such a motion, dismissal here is not an option. Moreover, a court is precluded from entertaining a request to extend the time for service pursuant to CPLR 306-b only where the action has been dismissed by virtue of the entry of a judgment of dismissal (see State of N.Y. Mortgage Agency v Braun, 182 A.D.3d 63, 70 [2d Dept 2020]), which has not occurred here.

The plaintiff contends that he was unable to serve Chen because he had misidentified her first name and, hence, his attorneys and their process servers were unable to locate her within the applicable 120-day period.

As the Court of Appeals explained in Leader v Maroney (97 N.Y.2d 95, 105-106 [2001]),

"the legislative history is unequivocal that the inspiration for the new CPLR 306-b provision was its Federal counterpart. The revision was intended to offer New York courts the same type of flexibility enjoyed by Federal courts under rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) similarly provides two alternative grounds for a plaintiff seeking an extension of time to serve process. The rule explicitly mandates that 'if the plaintiff shows good cause for the failure, the court shall extend the time for service] (Fed Rules Civ Pro, rule 4[m]). The rule also authorizes a second, unspecified discretionary basis for extension 'even if there is no good cause shown' (1993 Advisory Comm Note, Fed Rules Civ Pro, rule 4[m]; see, Boley v Kaymark, 123 F.3d 756, 758 [3d Cir] cert denied 522 U.S. 1109).

"The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant. We also agree with the Appellate Division majorities that Federal case law analysis of rule 4(m) of the Federal Rules of Civil Procedure provides a useful template in discussing some of the relevant factors for an interest of justice determination (see, e.g., AIG Managed Mkt. Neutral Fund v Askin Capital Mgt., 197 FRD 104, 109 [SD NY]; see also, State of New York v Sella, 185 Misc.2d 549, 554 [Albany County Sup Ct] [compiling Federal factors]).

"The statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative-the calculus of the court's decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served."

(some citations and internal quotation marks omitted).

This action does not qualify for an extension of time under the "good cause" exception, as the plaintiff made no attempts to serve Chen within the statutory 120-day period. Nonetheless, upon consideration of the factors articulated by the Court of Appeals in Leader, it qualifies under the "interest of justice" category (see Henneberry...